Reported Decision : 66 NSWLR 228 New South Wales Court of Criminal Appeal CITATION: Regina v Linard SHAMOUIL [2006] NSWCCA 112 HEARING DATE(S): 16 February 2006 JUDGMENT DATE: 12 April 2006 JUDGMENT OF: Spigelman CJ at 1; Simpson J at 81; Adams J at 82 DECISION: 1 Appeal allowed; 2 The judgment of Judge Maguire of 23 November 2005 be set aside. CATCHWORDS: CRIMINAL LAW – Crown Appeal – Exclusion of Evidence – Jurisdiction to hear appeal – Whether exclusion "substantially weakened" Crown case – Exclusion of evidence of cogency or force will "substantially weaken" Crown case – Evidence to be considered on the assumption that it is accepted by the jury – Criminal Appeal Act 1912, s5F(3A) - EVIDENCE – Probative value – Whether reliability or weight relevant to determination of probative value – Rarely relevant – Evidence Act 1995, s 137 - CRIMINAL LAW – Crown Appeal – Whether trial judge erred in excluding evidence on the basis that its probative value outweighed by danger of unfair prejudice – Where trial judge took into account credibility when assessing probative value – Where trial judge failed to identify manner in which prejudice unfair – Evidence Act 1995, s 137 Crimes Act 1900: ss 29, 30 LEGISLATION CITED: Criminal Appeal Act 1912: s5F(3A) Evidence Act 1995: ss 55(1), 97(1)(b), 98(1)(b), 101, 103(1), 115, 116, 135, 137, 165 Adam v The Queen (2001) 207 CLR 96 Bendix Autolite Corp v Midwesco Enterprises Inc, 486 US 888 (1988) Doney v The Queen (1990) 171 CLR 207 Festa v The Queen (2001) 208 CLR 593 Papakosmas v The Queen (1999) 196 CLR 297 R v AB [2001] NSWCCA 496 R v BD (1997) 94 A Crim R 131 CASES CITED: R v Carusi (1997) 92 A Crim R 52 R v Cook [2004] NSWCCA 52 R v Lameri [2004] NSWCCA 217 R v Lisoff [1999] NSWCCA 364 R v Milakovic [2004] NSWCCA 199 R v NKS [2004] NSWCCA 144 R v Rahme [2004] NSWCCA 233 R v Singh-Bal (1997) 92 A Crim R 397 R v Yates [2002] NSWCCA 520 PARTIES: Regina (Appellant) Linard Shamouil (Respondent) FILE NUMBER(S): CCA 2005/2415 COUNSEL: D Frearson SC (Appellant) P Strickland SC (Respondent) SOLICITORS: S Kavanagh – Solicitor for Public Prosecutions (Appellant) Julia Grix – Legal Aid (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/21/3158 LOWER COURT JUDICIAL OFFICER: Maguire DCJ - 20 - IN THE COURT OF CRIMINAL APPEAL CCA 2005/2415 SPIGELMAN CJ SIMPSON J ADAMS J Wednesday 12 April 2006 REGINA v Linard SHAMOUIL The Respondent is to stand trial for offences related to the shooting of Mr Daniel Dawood on 17 July 2004. Immediately following the shooting, the victim provided the police with details of the assailant, and on 5 August 2005 identified the Respondent in a photo-board identification. A month later, the victim provided police with a statement retracting his earlier identification, to the effect that he was unable to identify his assailant. The victim maintained this position on the voir dire . In addition to the victim's identification evidence, the Crown case involved: evidence of the relationship between the victim, the Respondent, and a former girlfriend of the Respondent; evidence of telephone calls made to the victim from a mobile telephone linked to the Respondent; evidence that the shooter identified himself by the Respondent's first name; the Respondent's access to a vehicle fitting the description of the vehicle from which the shooter alighted; and identification evidence from the victim's cousin. In a judgement of 23 November 2005, Maguire DCJ excluded the evidence of the photo-board identification on the basis that its probative value was outweighed by the danger of unfair prejudice to the defendant, pursuant to s137 of the Evidence Act 1995. The Crown appealed to this Court pursuant to s5F(3A) of the Criminal Appeal Act 1912 on two bases. First, that his Honour had wrongly considered the reliability of the identification evidence when determining its probative value. Secondly, that his Honour had failed to identify any unfair prejudice. The Respondent contended that the evidence caused unfair prejudice because of the danger that the jury might speculate about the victim's motive for retracting the identification, and the danger that the jury might convict on the basis of mistaken identification evidence. HELD Per Spigelman CJ, Simpson and Adams JJ agreeing Appeals under s5F(3A) 1 The Court's jurisdiction to hear an appeal under s5F(3A) rests upon the Court being satisfied by the Crown that the excluded evidence substantially weakens the Crown case. [29]–[30], [81], [82] R v NKS [2004] NSWCCA 144; R v Lameri [2004] NSWCCA 217; R v Milakovic [2004] NSWCCA 199 followed. 2 A Crown case can be "substantially weakened", even if it is strong, by the exclusion of evidence of cogency or force. [37], [81], [82] 3 When considering the capacity of evidence to "substantially weaken" the Crown case, it is not appropriate to take into account the weight that a jury might attach to the evidence – the evidence is to be considered on the assumption that it is accepted by the jury. [39]–[40], [81], [82] 4 The exclusion of the photo-board identification evidence substantially weakened the Crown case. Even if it were appropriate to consider the weight that a jury might attach to the evidence, its exclusion would still have such an effect. Accordingly, this Court has jurisdiction to hear the appeal. [36]–[37], [41], [46], [81], [82] Assessment of Probative Value 5 When considering the probative value of evidence, the evidence is to be considered on the assumption that it is accepted. Matters of reliability will only rarely be relevant to this assessment. [51]–[65], [81], [82] Adam v The Queen (2001) 207 CLR 96; R v Carusi (1997) 92 A Crim R 52; R v Singh-Bal (1997) 92 A Crim R 397; R v Yates [2002] NSWCCA 520; R v Rahme [2004] NSWCCA 233; R v AB [2001] NSWCCA 496 followed. Papakosmas v The Queen (1999) 196 CLR 297; R v Cook [2004] NSWCCA 52 considered. Doney v The Queen (1990) 171 CLR 207 referred to. 6 His Honour erred by considering the credibility of the identification evidence when determining its probative value. [67]–[68], [81], [82] Unfair Prejudice 7 His Honour did not identify any respect in which the evidence would cause unfair prejudice. [76], [81], [82] Festa v The Queen (2001) 208 CLR 593; R v BD (1997) 94 A Crim R 131 referred to. 8 Any unfair prejudice arising from dangers associated with identification evidence could be cured with a warning. His Honour made no reference to the possibility of a warning under s165 of the Evidence Act . The effect of such a warning should be taken into account. [74], [77], [81], [82] 9 No unfair prejudice arose from the possibility that the jury might speculate about the victim's motivation for retracting the identification. [78], [81], [82] IN THE COURT OF CRIMINAL APPEAL CCA 2005/2415 SPIGELMAN CJ SIMPSON J ADAMS J Wednesday 12 April 2006 REGINA v Linard SHAMOUIL Judgment 1 SPIGELMAN CJ: This is an appeal pursuant to s5F(3A) of the Criminal Appeal Act 1912 by the Crown. That section provides: "5F(3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case." 2 In a judgment of 23 November 2005 Judge Maguire excluded evidence of a photo board identification of the Respondent by the victim of an alleged offence. The Respondent stands charged with one count of shooting with intent to murder contrary to s29 of the Crimes Act 1900 with an alternative count of malicious shooting with the intent to inflict grievous bodily harm contrary to s33 of that Act. 3 The victim, Mr Daniel Dawood, had identified the Respondent in the course of a photo identification. He subsequently withdrew his identification in circumstances which I will hereinafter set out. 4 Maguire DCJ excluded the evidence on the basis that its probative value was outweighed by the danger of unfair prejudice pursuant to s137 of the Evidence Act 1995. The Crown appeals from this decision and asserts that the ruling eliminates or substantially weakens the prosecution case. The Respondent has put in issue the jurisdictional question of whether or not the exclusion does eliminate or substantially weaken the prosecution case. It is, accordingly, necessary to outline the nature of the proceedings. The Crown Case 5 On 17 July 2004 the complainant, Daniel Dawood, was shot outside his home. The main issue in the trial is whether the Respondent was the shooter. 6 The Crown case was that the Respondent had an intermittent relationship with a young woman by the name of Nahrain Zaya. The Respondent was jealous of any male attention enjoyed by Ms Zaya. The complainant was introduced to Ms Zaya and expressed some interest in her. 7 At about 4.00pm on Saturday 17 July 2004, the complainant received a call on his mobile telephone from a male who identified himself as "John". "John" said he was Ms Zaya's cousin and wanted to know what the complainant's intentions were. He wanted to discuss the matter with the complainant and asked for his address (which the complainant provided). 8 The complainant received a further telephone call while he was at home having an early dinner with his family. Call charge records indicate that this call was made at 5.06pm from mobile telephone number 0402592652. The complainant identified the voice as being the same as the earlier caller who had identified himself as "John". The caller asked where the complainant was. The complainant said he was at home. The caller told the complainant to go outside. The complainant walked outside, still with the mobile telephone, and saw a green car approach the front yard of his home. The green car stopped about 3-4 metres away from the complainant. The passenger got out of the car and said to the complainant, "Is this Daniel?". The complainant said he was. The passenger then said what sounded like "I'm Leonard" and started shooting at the complainant. The complainant was shot in the foot and the thigh. The passenger got back into the green car, which sped away. The complainant's family raced outside at the sound of gunfire. When the complainant's brother Bobo asked the complainant who did this to him, the complainant said, "It was Leonard". The complainant made a similar statement to his sister Norma and, on the way to the hospital, the complainant also told his cousin, Aidy Tiary, that the shooter identified himself as "Leonard". 9 The complainant gave a detailed description of the shooter to police in a statement dated 19 July 2004. The Respondent was arrested on 30 July 2004 but declined to participate in an identification parade. 10 On 5 August 2004 the complainant took part in a photographic identification procedure. This procedure was recorded by audio-videotape. The complainant was shown a photo board containing 20 photographs. He was asked if he could identify any person, pointed to number 7 on the photo board (a photograph of the Respondent), and said "I have only seen him the guy only the time he shot me on the 17 July". In a statement of the same date, the complainant stated: "There was a paper with twenty pictures. I saw the guy that shot me in the pictures. Its number seven [sic]. I am one hundred percent its him. I know its him because of his face. I recognised around his mouth. I imagined a white hat on his head and I could tell that was the person who shot me." 11 However, on 9 September 2004 the complainant attended the office of a private solicitor and made a statement retracting his identification of the Respondent as the shooter. In this statement, the complainant said: "6 I am making this statement of my own free will as I believe I have not accurately identified my assailant. I believe I have made a mistake. I could not at the time, nor could I now positively identify my assailant. I attempted to do so but feel uneasy that I am mistaken. 7 I do not know and have never known Linard Shamouil. 8. I was first questioned by police at Liverpool Hospital when I recall being heavily medicated by morphine. I do not recall any of the conversations with the police and had difficulty for a number of days even identifying members of my own family. 9. I cannot deny it but I cannot recall telling police the assailant said to me, 'I'm Linard'. 10. I cannot recall anything I told police while in hospital. I do not know Linard Shamouil and I cannot recall any physical details of the assailant. 11. I feel guilty to have identified a photograph of my assailant when at the time and to this day I genuinely cannot recall whether the person depicted in the photograph was my assailant. 12 I was nervous at Wetherill Park Police Station, concerned about myself, my parents and getting the matter resolved. However, I think it was nerves that led me to selecting a photograph of my assailant when at the time, as now, I was unsure." 12 The complainant maintained this position when he gave evidence in the committal proceedings and in the voir dire. 13 In response to an inquiry from the Court, the Crown identified the evidence relied upon by the Crown to establish the offence in addition to the identification evidence of Daniel Dawood. The evidence is circumstantial and consisted of the following: · The background relationship between the relevant parties: the complainant, the Respondent and Nahrain Zaya. · Telephone calls received by the complainant prior to the shooting. · The shooter's identification of himself as "Leonard". · The Respondent's access to a vehicle fitting the description of the vehicle from which the shooter alighted. · Identification evidence from the complainant's cousin. 14 With respect to the relationship between the Respondent and Ms Zaya the evidence suggests that the relationship was characterised by jealousy and that the complainant had demonstrated some interest in Ms Zaya. 15 Telephone records confirm the occasions on which calls were made amongst the three persons, Ms Zaya, Mr Dawood and Mr Shamouil. The content of some of these telephone calls has been referred to above. The calls were made from a mobile phone which can be connected to the Respondent. He gave the number to Ms Zaya, and to the police on an unrelated occasion. 16 There is hearsay evidence that Mr Darwood said that the shooter identified himself as "Leonard". Mr Darwood also gave a detailed description of his assailant that is at least consistent with the appearance of the Respondent. The evidence linking the Respondent to a green vehicle is to the effect that one of the Respondent's aunts owns such a vehicle. 17 The other identification by the complainant's cousin is in the form of a general description of the passenger in the vehicle. That witness said that he was woken by gunshots, that he was in shock and that it was dark. He admitted, in cross-examination, that he may have been mistaken. He did identify the Respondent from a photograph, by using the expression that he "looks familiar". 18 One matter that arose was the different accounts given by Mr Dawood as to whether or not he had seen the Respondent before the day of the incident. 19 During the course of the photographic identification when Mr Dawood identified the Respondent he was asked "Where you recognise the person from?" and answered "From here". When he was further asked where he had seen him before he replied: "I've never seen him. I've only seem him like the time he shot me" and on the second occasion when he was asked the same question said: "I don't know him. I've never seen him … I've only seen him, the guy, only the time he shot me on 17 July". 20 After the photo-board identification, Mr Dawood made a statement, the relevant part of which I have already set out. In that statement, no mention was made of whether the complainant had seen his assailant before. 21 I have already set out part of the typed statement of his subsequent retraction. I repeat the following passages: "7. I do not know and have never known Linard Shamouil. … 10. … I do not know Linard Shamouil and I cannot recall any physical details of the assailant." 22 When interviewed in hospital on the night of the shooting, the victim told a police officer that he had seen the assailant at Fairfield "a long time ago". In the course of the committal hearing Mr Dawood indicated that he had seen Linard "once or twice" at Fairfield. Daniel Dawood's brother referred to a conversation that occurred at hospital shortly after the shooting in the following terms: "Constable Ferns let me see Danny in the hospital. I went and say to Danny in Assyrian, 'Who did this shit.' Danny say back to me in Assyrian, 'His name is Linard. I don't know him. I never seen him before. He come to the house in the green car and say to me when I was out the front, 'Are you Danny?' I said, 'Yes I am Danny.' Then he said, 'I am Linard.' Then he shot me." 23 These statements were not consistent with his assertions that he had never seen the Respondent before the night of the attack. Trial Judge's Reasons 24 In the course of his judgment in which he rejected the evidence under s137 of the Evidence Act Maguire DCJ said: "The evidence of Daniel Dawood does not amount to the whole of the Crown case, that is if it is excluded, the Crown case does not collapse absolutely. However it is central to the Crown case and is therefore important that the application I am entertaining be considered with some care." 25 His Honour set out the sequence of events with respect to the statements made by Mr Dawood setting out its content, the videotape of the identification, the further written statement and the statement made by way of retraction to which he had adhered at the committal. 26 His Honour referred to s137 of the Evidence Act and to the definition of "probative value" in the dictionary. He gave his reasons for rejecting the evidence in the following passage: "The evidence of the complainant is clearly relevant. However, it is abundantly clear that the complainant has either lied or made inexplicable mistakes about significant matters. Whether he had or had not previously seen the accused is central to the issue of identification. There is, as I perceive it, a real risk that the complainant was, at the photo identification exercise, doing no more than identifying the man in photo 7 as a man that he had seen on one or two occasions prior to 17 July 2004. His use of the name 'Linard' to police and others on the same date is clearly capable of being a mere repetition of the name offered to him by the gunman. History is full of unreliable identification evidence which has been admitted into evidence and accepted by juries, only to be brought undone later. Mr Brady, in the course of his submissions today said something to this effect, that juries can be seduced by unreliable identification evidence, and there is no doubt that that has happened in cases in the past. The risk of that happening here presents, in my view, a real danger of unfair prejudice, which, in my view, outweighs the probative value of the evidence sought to be admitted. I do not have to decide any questions of fact in relation to this matter, but as I have said, it appears to me that arguably the complainant was lying, or was very seriously mistaken, about some of the matters central to this question of identification, and to allow, after his retraction, the bare bones of what is left to go to the jury, seems to me to reduce the probative value of the evidence to the point where the risk of an invalid conviction would amount to unfair prejudice which would outweigh the residual probative value of the evidence. Accordingly, I reject the evidence at hand." The s5F(3A) Test 27 The Appellant contends that the ruling excluding the evidence substantially weakens the prosecution's case. The Respondent contends that that is not so. This constitutes a challenge to the jurisdiction of the Court. 28 Section 5F(3A) was introduced by the Crimes Legislation Further Amendment Act 2003. The pre-existing right of appeal by the Crown in s5F(2) of the Criminal Appeal Act 1912 has been interpreted so as not to extend to rulings which merely weaken but do not destroy the Crown case. 29 In accordance with the authorities, this Court must assess the Crown case in order to determine whether or not the excluded evidence substantially weakens it. (See e.g. R v NKS [2004] NSWCCA 144 at [17]; R v Lameri [2004] NSWCCA 217 at [35]-[36]; R v Milakovic [2004] NSWCCA 199 at [10] and [31].) 30 The Crown bears the onus of establishing that the exclusion of the evidence substantially weakens its case. 31 Without the identification evidence of Dawood the Crown submits that it would be left with a weak circumstantial case and no direct evidence. It submits that the case including the direct evidence is more compelling and, indeed, a powerful one. On this basis it submits that the Crown case is "substantially weakened". 32 The Respondent submits that the identification evidence is so weak that its exclusion cannot be said to substantially weaken the prosecution case. In particular, he challenges the Crown submission that the complainant's description was generally consistent with the appearance of the Respondent. Further, he says that there is no evidence of a number of matters asserted by the complainant in this description; including that he was about 170-175cms tall, that he was skinny, that he had pimples on his cheek, that he had diamond stud earrings in both ears, that he had a silver chain with a silver cross about 10cms long, and the description of his clothes. Furthermore, although it was consistent with the other evidence that Mr Dawood identified his assailant as having a thin goatee beard, he failed to mention the Respondent's moustache. Finally, there was inconsistency in that Mr Dawood suggested that the assailant was wearing a white cap, whereas Mr Tiary said he was wearing a black beanie. 33 With respect to the Crown's submission that without the identification evidence it would be left with a weak circumstantial case and no direct evidence, the Respondent notes that the Crown would still have the complainant's description of his assailant which, to some degree, is consistent with other evidence in a number of respects including a statement that he looked Assyrian, that he had olive skin, that he was 20-21 years old and had a thin goatee beard. 34 The Respondent also submits that the complainant's photographic identification is made considerably weaker by his later retraction and by the significant inconsistencies in his statements and evidence about whether he had previously seen his assailant. The reduction in the probative value of the evidence is such that its exclusion, the Respondent submits, would not substantially weaken the Crown case. 35 I have set out the nature of the Crown case above together with the evidence, other than the photo identification evidence that remains to be considered by the jury. This includes, particularly, the evidence about the relationship between the accused and Ms Zaya and between the complainant and Ms Zaya; the evidence of the telephone calls prior to the shooting and records associating those calls with a mobile telephone used by the accused; the hearsay evidence of the shooter's self-identification as "Leonard"; the Respondent's access to a car matching the description of the car; and Mr Dawood's description of his assailant. 36 In the passage from the judgment of Maguire DCJ, which I have quoted above, his Honour identified the photo identification as "central to the Crown case". I agree. In its absence the Crown has a significantly weaker circumstantial case with respect to the critical issue of whether the Respondent was the shooter. 37 The Respondent's submission which directs attention to the remaining Crown evidence – telephone, car, relationship, the name "Leonard" – is a case that is of some substance. However, a clear forceful and unhesitating identification on the first occasion by the victim is evidence of particular force. Its absence will, in my opinion, "substantially weaken" the Crown case. Even a case which is otherwise likely, even very likely, to succeed, may still be 'substantially weakened', if evidence of cogency or force is withheld. 38 As noted above, counsel for the Respondent submitted that the evidence of identification was itself so weak that its absence could not be said to substantially weaken the Crown case. In my opinion, this approach is not appropriate. 39 The issue is similar to that which arises when determining the probative value of evidence in the context of the application of s137 of the Evidence Act, to which I will refer below. The jurisdictional issue posed for this Court under s5F(3A) of the Criminal Appeal Act is not intended to involve an inquiry into the weight to be given to the evidence excluded. Questions of weight are for the jury. The section directs attention to "the prosecution's case", to be considered as a "case". This section is not concerned with the weight of the Crown's evidence. 40 This Court should determine whether or not a ruling on the admissibility of evidence "substantially weakens" the Crown case by asking whether or not that would be the effect, on the assumption that the jury accepted the evidence, as long as the evidence was fit to be left to the jury. It is not desirable for this Court to undertake an investigation into the weight of the evidence based on credibility or reliability considerations. 41 Even if I were of a different view, and of the opinion that it was open to assess the evidence from the point of view of the weight likely to be attributed to it by a jury, in view of the subsequent retraction of the identification and the different versions about the victim's prior knowledge of the Respondent, I would still have concluded that the Crown case was substantially weakened. 42 I have viewed the videotape of the photo identification and read the statements of the witness. They have a stamp of truth about them and are delivered with confidence. In particular, his unhesitating identification of the Respondent, and the subsequent detailed description of the assailant's appearance, strongly suggests that Mr Dawood had a clear and quite firm opinion about who the assailant was and what he looked like. A jury, properly instructed, could well take the view that the attempt to retract the identification evidence was unconvincing and a manifestation of either a threat of reprisals or of a desire, within a close knit ethnic community, to resolve matters amongst themselves, without the interference of the State. 43 That the latter is the more likely is suggested by the followed extract from the victim's evidence at committal: "Q. What mistake had you made? A. Because I made that statement against him and he's like my blood. Q. When you say like your blood, what does that mean? A. It means he's Assyrian like me. It's my blood. I done a mistake. I made a mistake and I done the statement against him. Q. Is that the mistake that you are referring about? A. Yes." 44 Either of the alternative possibilities represents a challenge to the administration of criminal justice in this State, which this Court should be very slow to tolerate in any manner. 45 Insofar as it may be permissible for this Court to form a view about the strength of the evidence, notwithstanding the attempt to retract it, in my opinion the excluded evidence is of force and significantly enhanced the Crown case. 46 Jurisdiction under s5F(3A) is established. The Probative Value Issue 47 Section 137 of the Evidence Act provides: "In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 48 The words "probative value" are defined in the dictionary as follows: "Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of the fact in issue." 49 Before the Evidence Act the Christie discretion to exclude evidence at common law for which s137 is a replacement, did not involve considerations of reliability of the evidence. 50 As Hunt CJ at CL, with whom Newman and Ireland JJ agreed, said in R v Carusi (1997) 92 A Crim R 52 at 65-66: "It was for the jury, and not for the trial judge, to determine the factual issues at the trial. Applying the ordinary tests, there was clearly a case to go to the jury based upon the evidence in chief of Mrs McHugh which (if that evidence were accepted) was a strong one, and it was for the jury to determine which parts of her evidence they accepted and which parts they rejected. The power of the trial judge to exclude evidence in accordance with the Christie discretion does not permit the judge, in assessing what its probative value is, to determine whether the jury should or should not accept the evidence of the witness upon which the Crown case depends. The trial judge can only exclude the evidence of such a witness where, taken at its highest, its probative value is outweighed by its prejudicial effect; whereas this Court may use its supervisory powers to set aside a verdict where, the issue having been left to the jury, this Court is satisfied – on the whole of the evidence – that the jury ought nevertheless have had a reasonable doubt." [Footnotes omitted] 51 After the enactment of s137, the same approach was taken in R v Singh-Bal (1997) 92 A Crim R 397 at 403 and R v Yates [2002] NSWCCA 520 at [255]-[256], in both of which the formulation from R v Carusi was expressly adopted, i.e. the evidence must be "taken at its highest" in order to determine its probative value. 52 Other views have been expressed in the authorities on this issue. 53 Consistently with the pre Evidence Act position, in Adam v The Queen (2001) 207 CLR 96 at [60], Gaudron J concluded that the dictionary definition of "probative value" must have read into it an assumption that the evidence would be accepted on the basis that "evidence can rationally affect the assessment of the probability of a fact in issue only if it is accepted". 54 A contrary view was taken by McHugh JA in Papakosmas v The Queen (1999) 196 CLR 297 at [86] where his Honour said that the assessment required by the definition of probative value "would necessarily involve considerations of reliability". 55 In R v Rahme [2004] NSWCCA 233 James J at [201]-[202], with whom Sully J agreed at [65], adopted the approach of Gaudron J. However, Hulme J at [217]-[223] adopted the approach of McHugh J. 56 That there may be some, albeit limited, circumstances in which credibility and reliability will be taken into account when determining probative value was indicated by Simpson J in R v Cook [2004] NSWCCA 52 in which evidence of flight was sought to be excluded under s137. Her Honour said: "[43] … I am satisfied that it is not the role of a trial judge in NSW, under the Evidence Act , to make a finding of fact about the actual reasons for flight where such evidence is given on behalf of the Crown. That remains the province of the jury. The role of the judge in NSW, at least post-1995, is merely to determine the relative probative value against the danger of unfair prejudice that might result. In saying this, I do not mean to lay down a blanket rule that, in considering evidence on a voir dire in which the issue is the admissibility of evidence having regard to s137, there is never any room for findings concerning credibility. There will be occasions when an assessment of the credibility of the evidence will be inextricably entwined with the balancing process. That means that particular caution must be exercised to ensure that the balancing exercise is not confused with the assessment of credibility, a task committed to the jury. There may, for example, be occasions on which the accused's response is so preposterous as to give rise to the conclusion that it could be accepted by no reasonable jury. The credibility exercise, in those circumstances, is to determine whether the evidence given by (or on behalf of) the accused is capable of belief by the jury. If it is, then its prejudicial effect must be considered. If it is not, then the balancing exercise may well result in an answer favourable to the Crown. That is essentially because any prejudice arising to an accused from putting a preposterous explanation to the jury would not be unfair prejudice." 57 A similar approach is evident in the reasoning of Adams J, with whom I and Sully J agreed in R v AB [2001] NSWCCA 496. That case involved the admission of tendency evidence under s101 of the Evidence Act, where the question is whether or not "the probative value of the evidence substantially outweighs any prejudicial effect it may have". In that context Adams J said: '[17] … In my view, the probative value of that evidence was high in the circumstances of this case, upon the assumption, of course, that it was true, but that must be necessarily the assumption with which s 101 is concerned." 58 This difference in approach in the authorities referred to above turned, in large measure, on the weight, if any, to be given to the omission of the words 'if the evidence were accepted', from the definition of "probative value". Such words appear in the otherwise almost identical formulation in the definition of relevance of evidence in s55(1). I note, further, that in s55 the words "directly or indirectly" expressly qualify the phrase "rationally affect". They do not appear in the definition of probative value. 59 There is at least one reason why the words that appear in s55 would not be appropriate in the definition of "probative value". The latter definition has work to do in s103, the exception to the credibility rule. Whether cross-examination on credit has "substantial probative value" within s103(1) does not invite consideration of 'acceptance' of the evidence proposed to be used as part of an attack on credit. Nor does it invite consideration of whether the 'effect' on "the assessment" is 'direct or indirect'. 60 The preponderant body of authority in this Court is in favour of a restrictive approach to the circumstances in which issues of reliability and credibility are to be taken into account in determining the probative value of evidence for purposes of determining questions of admissibility. There is no reason to change that approach. 61 In my opinion, the critical word in this regard is the word could in the definition of probative value as set out above, namely, "the extent to which the evidence could rationally affect the assessment …". The focus on capability draws attention to what it is open for the tribunal of fact to conclude. It does not direct attention to what a tribunal of fact is likely to conclude. Evidence has "probative value", as defined, if it is capable of supporting a verdict of guilty. 62 This conclusion is reinforced by the test that evidence must "rationally affect" the assessment. As Gaudron J emphasised in Adam supra, a "test" of 'rationality' also directs attention to capability rather than weight. 63 There will be circumstances, as envisaged by Simpson J in Cook supra, where issues of credibility or reliability are such that it is possible for a court to determine that it would not be open to the jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of the fact in issue. In that limited sense McHugh J's observations in Papakosmas that "considerations of reliability are necessarily involved" have application. 64 To adopt any other approach would be to usurp for a trial judge critical aspects of the traditional role of a jury. In the case of evidence of critical significance, such a ruling by a trial judge would, in substance, be equivalent to directing a verdict of acquittal on the basis that the trial judge was of the view that a verdict of guilty would be unsafe and unsatisfactory. As the High Court said in that different, but not irrelevant, context in Doney v The Queen (1990) 171 CLR 207 at 275, this is not a permissible "basis for enlarging the powers of a trial judge at the expense of the traditional jury function". In my opinion, the same is true if a trial judge can determine the weight of evidence when applying s137. 65 This Court should be very slow to conclude that it was the intention of Parliament in enacting the Evidence Act to alter the fundamental relationship between the judge and jury in a criminal trial in the manner suggested. Such a change would occur on each occasion that "probative value" falls to be assessed by the trial judge including: tendency and coincidence evidence (s97(1)(b), s98(1)(b), s101(2)); cross-examination on credit (s103(1)); the comparative weight with misleading, confusing, or time wasting effects (s135(b) and (c)); and the comparative weight with unfair prejudice (s135(a), s137). 66 I have set out above his Honour's reasoning in this respect. It appears to me to be clear that his Honour determined the probative value of the evidence by referring to the general unreliability of identification evidence and the possibility of a displacement effect which, if the complainant had in fact seen the Respondent on those two occasions in Fairfield, would have been operative in the present case. 67 Furthermore, his Honour plainly took into account issues of credibility when he said, as quoted above: "…. It appears to me that arguably the complainant was lying, or was very seriously mistaken, about some of the matters central to this question of identification". In this passage his Honour does not determine whether the "deception" was about the original identification or on the occasion of the subsequent withdrawal. The fact that his Honour, after saying he did not have to "decide any questions of fact", applied a test of the mere 'arguability' of the deficiencies in the credit of the witness, suggests that his Honour was applying a very low order test. 68 On any view, in these respects, his Honour did not apply the test established by the authorities in this Court, as set out above. 69 The appeal should be allowed. The Unfair Prejudice Issue 70 The Appellant submits that his Honour failed to identify any unfair prejudice and accordingly, that the process by which he made the judgment under s137 miscarried. 71 Like other sections of the Evidence Act, s137 calls upon a judge to compare essentially incommensurable considerations: probative value on the one hand and unfair prejudice on the other. As Justice Scalia once put it, this is like asking "whether a particular line is longer than a particular rock is heavy". (Bendix Autolite Corp v Midwesco Enterprises Inc, 486 US 888 (1988) at 897). Nevertheless, this is a task that judges are often called upon to perform. 72 There is now a considerable body of case law in this Court which emphasises the fact that the assessment of this element requires any prejudice to be unfair. There must be a real risk that the evidence will be misused by the jury in some way and that that risk will exist notwithstanding the proper directions which it should be assumed the Court will give. (See e.g. R v BD (1997) 94 A Crim R 131 at 151.) (I do not need to refer to the reasoning in some cases that procedural prejudice may be sufficient.) 73 To use the test of McHugh J in Festa v The Queen (2001) 208 CLR 593 at [51]: "It is only when the probative value of the evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or contents of the evidence may influence the jury or divert the jurors from their task." (See also R v Lisoff [1999] NSWCCA 364 and R v Yates [2002] NSWCCA 520 at [252].) 74 In his reasons for judgment that I have extracted above, his Honour made reference to the possibility of a displacement effect, by reason of the evidence that the victim may have seen the assailant at Fairfield on one or two occasions. His Honour said that "juries can be seduced by unreliable identification evidence". It was this which his Honour identified as constituting the "real danger of unfair prejudice". In this analysis his Honour makes no reference to the warning about unreliable evidence under s165. Such a warning must be taken into account before drawing the conclusion that such prejudice as may arise would be "unfair". 75 His Honour gave no consideration to the directions and the warning which would prevent the evidence being misused by the jury in an unfair way. Indeed, his Honour's general references to identification evidence were such that the application of s137 would be virtually automatic to such evidence on the basis that it is virtually presumptively "unfair" in its prejudicial effect. The provisions of the Evidence Act, which give careful attention in s115 and s116 to such evidence, reinforced by s165, would hardly be necessary. It is not the case that identification evidence must be regarded as creating an unfair prejudice. 76 His Honour does not identify any particular respect in which the identification evidence in the present case could be seen to be unfair. 77 Counsel for the Respondent submitted that in effect, albeit not in terms, his Honour should be taken to have found that the danger of unfair prejudice arose because the jury would give the identification evidence undue weight, given its limited probative value. There is no reason to suppose that that would be so in view of the warnings that would be given under s165. This would include reference to the possibility of the occurrence of a displacement effect, of the character to which his Honour made reference. 78 Counsel for the Respondent also suggested that there was a risk of unfair prejudice by reason of the jury speculating about the motive for Dawood retracting his identification. It was submitted that the jury would assume that he acted from fear of reprisal. That is not necessarily the case. The alternative motive to which I have referred above is the recognition by the victim, without any threats capable of constituting an admission on the part of the Respondent, of the fact that they are both members of the same small Assyrian community. Plainly, the Crown will need to convince the jury that the retraction of evidence was false. That does not necessarily point to conduct on the part of the Respondent capable of constituting an admission or otherwise constituting unfair prejudice. 79 For this alternative reason the appeal should be allowed. Conclusion 80 The orders I propose are: 1 Appeal allowed. 2 The judgment of Judge Maguire of 23 November 2005 be set aside. 81 SIMPSON J: I agree with the Chief Justice. 82 ADAMS J: I agree with the judgment of the Chief Justice. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.